573 F.

2d 769

UNITED STATES of America, Appellee,

v.
Jose NUNEZ, Appellant.
No. 716, Docket 77-1487.

United States Court of Appeals,

Second Circuit.
Argued Feb. 28, 1978.
Decided March 31, 1978.
Certiorari Denied May 30, 1978.
See 98 S.Ct. 2828.

Steven Lloyd Barrett, New York City (Martin Erdmann, The Legal Aid
Society, Federal Defender Services Unit, of counsel), for appellant.
Shira A. Scheindlin, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the
E. D. N. Y., Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of
counsel), for appellee.
Before LUMBARD, FEINBERG and TIMBERS, Circuit Judges.
FEINBERG, Circuit Judge:

Jose Nunez appeals from an order of the United States District Court for the
Eastern District of New York, George C. Pratt, J., denying appellant's motion to
correct his allegedly illegal sentence by reducing his probationary period from
four to two and one-half years. This is the second time that appellant has raised
this issue in this court. The first was when defendant appealed his conviction,
after a jury trial, for possessing counterfeit Federal Reserve notes with intent to
defraud, in violation of 18 U.S.C. 472. We affirmed the conviction in open
court, but refrained from ruling upon the legality of the sentence because the
question had not yet been raised in the district court. That procedural defect was
rapidly remedied, when appellant moved in the district court under
Fed.R.Crim.Proc. 35 for correction of his sentence. Judge Pratt denied the
motion in a memorandum opinion, and this appeal followed.

Appellant was convicted on only one count, and Judge Pratt sentenced him to a
prison term of three years, with six months to be served in a jail-type institution
and the balance of the prison term suspended, to be followed by a four-year
period of probation. This was a so-called split sentence, under which a judge
may impose, on a single count, both a prison term and probation. Appellant
claims, however, that the period of probation under this provision may not
exceed the portion of the prison sentence that has been suspended. On this
view, since the judge sentenced appellant to three years in prison and
suspended all but six months of that term, the four-year period of probation was
illegal; its maximum permissible duration would have been two and one-half
years.

The split sentence provision, enacted by Congress in 1958,1 is now the second
paragraph of 18 U.S.C. 3651. That lengthy section sets forth the statutory
authority for placing a defendant on probation, and provides, in the first, second
and fifth paragraphs, as follows:

4
Upon
entering a judgment of conviction of any offense not punishable by death or
life imprisonment, any court having jurisdiction to try offenses against the United
States when satisfied that the ends of justice and the best interest of the public as
well as the defendant will be served thereby, may suspend the imposition or
execution of sentence and place the defendant on probation for such period and upon
such terms and conditions as the court deems best.
5
Upon
entering a judgment of conviction of any offense not punishable by death or
life imprisonment, if the maximum punishment provided for such offense is more
than six months, any court having jurisdiction to try offenses against the United
States, when satisfied that the ends of justice and the best interest of the public as
well as the defendant will be served thereby, may impose a sentence in excess of six
months and provide that the defendant be confined in a jail-type institution or a
treatment institution for a period not exceeding six months and that the execution of
the remainder of the sentence be suspended and the defendant placed on probation
for such period and upon such terms and conditions as the court deems best.
6 period of probation, together with any extension thereof, shall not exceed five
The
years. (Emphasis supplied).
7

Appellant focuses upon the italicized words in the second paragraph. These
authorize a court to impose a prison sentence "in excess of six months," to
direct that a defendant be confined for not more than six months, to suspend the
"execution" of the remainder of the sentence, and then to place the defendant
"on probation for such period and upon such terms and conditions as the court

deems best." Appellant contends that the phrase "for such period" (the period of
probation) could either refer back to the preceding phrase "remainder of the
sentence" (the suspended portion of the prison term) or be qualified by the
subsequent phrase "as the court deems best." If the earlier phrase defines the
limit of probation, then for reasons outlined above, appellant's sentence must be
reduced. Appellant argues that since the statutory language is ambiguous,
legislative history, internal consistency and the doctrine of lenity, see, e. g.,
Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978);
United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 30 L.Ed.2d 488
(1971), all suggest that his reading of the statute is the correct one.
8

Oddly enough, there do not appear to be any published opinions squarely ruling
on the point.2 It may be that the issue has simply not been raised because
judges, both at the trial and appellate levels, defense attorneys and prosecutors
have all assumed for 20 years that what Judge Pratt did here was well within
his discretion.3 As indicated below, we believe that such an assumption is
correct. But the argument has now been plainly made and well-presented, and
we think it appropriate to state our reasons for rejecting it.

The split sentence provision does not exist in a vacuum. It constitutes the
second paragraph in the section of the United States Code that deals with
suspension of sentence and probation. The first paragraph of that section
provides that upon judgment of conviction, a court "may suspend the
imposition or execution of sentence and place the defendant on probation for
such period and upon such terms and conditions as the court deems best "
(emphasis supplied). Thus, a court may, in its discretion, suspend the execution
or imposition of sentence. If it does, the court is required to set a definite period
of probation. The terms and conditions of probation are left to the court's
discretion, except as limited by the fifth paragraph of section 3651, which
provides that the period of probation and any extension thereof shall not exceed
five years.

10

The phrase "for such period and upon such terms and conditions as the court
deems best" also appears in the second paragraph of section 3651, providing for
split sentences. It is a settled principle of statutory construction that "(w)hen the
same word or phrase is used in the same section of an act more than once, and
the meaning is clear as used in one place, it will be construed to have the same
meaning in the next place." Meyer v. United States, 175 F.2d 45, 47 (2d Cir.
1949), quoting Lewellyn v. Harbison, 31 F.2d 740, 742 (3d Cir. 1929). The
term "for such period" in the first paragraph of section 3651 has no specific
antecedent and must be modified by the language immediately following. It is
therefore clear that the length of the probationary term authorized by the first

paragraph is solely within the discretion of the court, except as limited by the
five-year constraint set forth in the fifth paragraph. Given the clear meaning of
the term "for such period" in the first paragraph, there is no obvious reason why
that same term should not have the same meaning in the second paragraph of
the section, especially since the term appears within identical passages
("probation for such period and upon such terms and conditions as the court
deems best") in both paragraphs.
11

We therefore conclude that the sole limitation upon the length of the
probationary period in a split sentence is found in the fifth paragraph of section
3651, restricting probation to five years; the duration of the suspended prison
sentence is irrelevant here. Appellant contends that this construction does
violence to the spirit of the fifth paragraph because it would hypothetically
"authorize a sentence above the maximum probation sentence of five years five
years' probation as well as six months in jail." Appellant evidently imputes to
Congress an intention to have the five-year probation limit measured from the
first day a defendant becomes subject to the supervisory power of the
Government. From the words "(t)he period of probation . . . shall not exceed
five years" appellant would have us infer that the periods of probation and
incarceration imposed under a split sentence may not in combination exceed
five years. But we do not read the five-year limitation on probation terms to
encompass preliminary intervals of imprisonment. Nothing in section 3651
suggests that every day of incarceration imposed pursuant to a split sentence
removes one day from the probationary ceiling. A review of cases in which
split sentences have been imposed unearths repeated instances of the contrary
assumption.4

12

Alternatively, appellant can be understood to suggest that our interpretation of

section 3651 would allow an illegal sentence, in that the combined
imprisonment/probation period may exceed the maximum term of
imprisonment that could be imposed for the crime charged. But such sentences
are not illegal. It has long been recognized that statutory ceilings on prison
sentences for particular offenses do not affect a judge's discretion in fixing the
duration of probation. See, e. g., United States v. Lancer, 508 F.2d 719, 724 n.
18, 726 (3d Cir.) (en banc), cert. denied, 421 U.S. 989, 95 S.Ct. 1992, 44
L.Ed.2d 478 (1975); Driver v. United States, 232 F.2d 418, 421-22 (4th Cir.
1956); Mitchem v. United States, 193 F.2d 55, 57 (5th Cir. 1951).

13

Finally, neither the legislative history of the second paragraph of section 3651
nor the doctrine of lenity suggests a different result. Prior to 1958, a district
judge could not, on a single-count conviction, impose both a prison term and a
period of probation.5 The legislative history indicates that the new provision

was meant to give the sentencing judge greater flexibility, but sheds no light on
the issue before us. And the doctrine of lenity is inapplicable absent "ambiguity
concerning the ambit of criminal statutes." United States v. Bass, supra, 404
U.S. at 347, 92 S.Ct. at 522. Even more telling, appellant's construction would
undoubtedly encourage district courts to impose longer prison terms on split
sentences, before they suspended all but the first six months, in order to obtain
greater leeway as to probation.6
14

The judgment of the district court is affirmed.

Pub.L.No. 85-741, 72 Stat. 834 (1958)

For cases involving split sentences which would have to be characterized as

illegal if appellant's contention is correct, see, e. g., United States v.
Grandinetti, 564 F.2d 723, 724 (5th Cir. 1977) (three-year sentence imposed;
four months to be served in prison, followed by four years probation); United
States v. Mekjian, 505 F.2d 1320, 1322 (5th Cir. 1975) (eighteen-month
sentence; 15 days to be served in jail, followed by two years probation); United
States v. Dorszynski, 524 F.2d 190, 191 (7th Cir. 1975), cert. denied, 424 U.S.
977, 96 S.Ct. 1483, 47 L.Ed.2d 747 (1976) (one-year sentence, 90 days to be
served in jail, followed by two years probation); see cases cited in note 4 infra.
Disparities between the portion of the sentence suspended and the period of
probation imposed do not always work to the disadvantage of the defendant.
See United States v. Pisacano, 459 F.2d 259, 261 n. 1 (2d Cir. 1972), vacated
and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208
(1974) (for both defendants receiving split sentences, suspended sentence
greater than term of probation)

Appellant cites United States v. Teresi, 484 F.2d 894 (7th Cir. 1973), but there
is no indication in the opinion that the claim pressed here was considered by
the court

See, e. g., Fagan v. United States, 545 F.2d 1005, 1006 (5th Cir. 1977) (three
months imprisonment followed by five years probation); Nicholas v. United
States, 527 F.2d 1160, 1161 (9th Cir. 1976) (six months imprisonment followed
by five years probation); United States v. Kohlberg, 472 F.2d 1189, 1190 (9th
Cir. 1973) (six months imprisonment followed by five years probation); United
States v. Candanoza, 431 F.2d 421, 423 n. 1 (5th Cir. 1970) (two months
imprisonment followed by five years probation)

A judge could achieve this result, however, on a multi-count indictment by

giving a prison sentence on one count and a period of probation on another

6

Thus, in this case, even under appellant's theory, Judge Pratt could have
achieved the same result by imposing a four and one-half year prison sentence,
suspending all but the first six months, and placing appellant on probation for
the remaining four years